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How to avoid refusal of a visa petition or application

Starting September 11, 2018 if you do not have a complete or completed petition or application form, the USCIS can simply refuse your petition or application without requesting for further evidence.


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How to avoid refusal of a visa petition or application
Written by Crispin Aranda.
Updated September 17, 2018 | United States of America

If you commit a mistake in filing a petition or application the first time, the U.S. Citizenship and Immigration Services (USCIS) now adhere to the rule that applicants are guilty unless proven innocent.

On September 6, 2018, the USCIS released the final Policy Memorandum (PM) on Issuing Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) which basically gives an applicant just one chance to have the petition considered.

The policy took effect September 11. 2018, an ominous date that should shatter your twin towers of expectation: The Tower of Receipt and Tower of Approval. 

Most petitions and applications – if found complete and eligible for processing are issued the Notice of Receipt.  After assessment for eligibility for the immigration benefit being sought, a Notice of Approval is sent to the Petitioner or Applicant – as the case may be.

This policy could affect 7 million petitions and applications the USCIS receive annually, according to the USCIS website.

“These petitions and applications typically allow foreign nationals to stay in United States as lawful permanent residents (LPR) or immigrants, to stay temporarily to work as nonimmigrants, or to obtain U.S. citizenship.”

The most common Family-based case is the I-130 Petition for Alien Relative. the I-485 Application to Register Permanent Residence of Adjust Status and the I-864 Affidavit of Support.  Whether the applicant is outside the United States, e.g., the Philippines or applying for adjustment of status in the U.S., the I-864 Affidavit of Support is required for both applicants.

The most common Nonimmigrant applications are the I-539 Application to Extend Temporary Stay or Change of Status and the I-129 Petition for Nonimmigrant Worker

Of the 703,800 applications under the Deferred Action for Child Arrivals (DACA), 3,800 are from the Philippines. Because of preliminary injunctions issued by the district courts in California and New York, DACA cases are not affected by this 9/11 memorandum. 

Where are petitions filed and how many are currently pending?

A USCIS report published July 17, 2018 illustrates how many petitions are currently pending and which USCIS offices are handling them.  It should be noted that recently, the USCIS had been transferring workloads from one Service Center to another. 

Petitions for Alien Relatives

USCIS Relative Petitions Form I-130 Performance Data (Fiscal Year 2018, 2nd Qtr) 

Data as of March 31, 2018, Published July 17, 2018

Category

Petitions Received

Pending

Total Pending

Immediate Relatives

148,089

474.101

Preference Categories

65,977

920,765

1,394,866

Field Office by State

  California

10,021

40,212

40,697

  Florida

6,400

31,311

31,931

  New York

7,181

39,963

41,036

  Texas

6,923

38,016

38,407

USCIS Service Centers

   California (WSC)

352

6,707

786,437

   Nebraska (NSC)

26,712

64,323

66,073

   Texas (SSC)

44,496

94,158

95.454

   Vermont (ESC)

D

2,969

135,613

   Potomac (YSC)

17,871

48,519

49,239

Notes:

On March 1, USCIS began transferring certain cases to the Potomac Service Center (PSC) from other service centers to balance workloads. The affected casework includes Form I-765Application for Employment Authorization, filed by F-1 and M-1 students seeking Optional Practical Training (OPT) and J-1 dependents.Mar 1, 2016

  • D -  Data withheld to protect individuals' privacy.
  • "Immediate Relatives" refers to petitions to sponsor Immediate Relatives of U.S. citizens. 
  • "All Other Relatives"refers to petitions to sponsor relatives under Family‐based Preferences.
  • International field offices only accept Form I‐130 filings for immediate relatives of U.S. citizens residing in the country in which the field office is located. 
  • Petitions Received- The number of new petitions received and entered into a case‐tracking system during the reporting period. 3 The number of petitions approved during the reporting period. 
  • Petitions Pending-The number of petitions awaiting a decision as of the end of the reporting period. 
  • USCIS Field Office- Represents the office location. The office location does not reflect the complete area covered by the office’s jurisdiction. Please refer to USCIS.gov for office jurisdictions.

Policy History

The initial RFE/NOID memorandum was issued in 2013. The RFE “addressed policies for the issuance of requests for evidence (RFEs) and NOIDs when the evidence submitted at the time of filing did not establish eligibility for the benefit sought.”

In its overview, the USCIS explains that “(W)hile the 2013 PM provided that RFEs should be issued ‘when the facts and the law warrant,’ it also stated that an adjudicator should issue an RFE unless there was ‘no possibility’ that the deficiency could be cured by submission of additional evidence.”

Much like the absolute power of consular officers to approve or refuse a nonimmigrant visit visa application, USCIS adjudicators are given the “full discretion to deny applications, petitions, and requests without first issuing an RFE or NOID, when appropriate.”

While the PM, did state that “the purpose of this policy memo is NOT to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility” the memorandum emphasized that “the burden of proof, however, is on the applicant, petitioner, or requestor to

establish eligibility.”

An avowed objective of the revised, new PM  “is to discourage frivolous or substantially incomplete filings used as placeholder filings and to encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required.”

Which cases are and are not covered by this policy memorandum? All applications, petitions, and requests received after September 11, 2018 will be subject to the new policy. Anything USCIS received on or before September 11, 2018, will not be subject to the new policy.

Do it right the first time

1. Use the most recent form.The USCIS updates the forms frequently. Be sure to check the validity of the form on the upper right section of the form. The following information is indicated on each form: The Form No. (for example, Form I-130, followed by an OMB No. such as 1615-0012 and most importantly when the form may be used or expiration date. If you use a form with an expired date, your petition or application may be refused.

2.Read the Form Instructions.  When you download the forms from the USCIS website, be sure to download the instructions for the form you need to use. The instructions include information on who may or may not use the form and general instructions.

3.Submit all documents listed in the General Requirements. 

4.Include the correct filing fee in the manner provided. Filing fees may be paid through check or money order must be drawn on a bank or other financial institution located in the United States and must be payable in U.S. currency. Be sure to make the check payable to U.S. Department of Homeland Security. Do NOT just use the initials “USDHS or “DHS.”

Petitioners who live outside the United States may contact the nearest U.S. Embassy or U.S. Consulate for instructions on the method of payment.

5.Submit the form with the required fee to the correct, specific USCIS address. Note that for I-130 Petitions, the form must be sent to either the Chicago or Phoenix Lock Box. For stand-alone I-130 petitions(not accompanied by any application e.g., I-485 Application for Permanent Residency) the Form I-130 must be submitted to the Phoenix Lockbox if the petitioner is residing in any of the following states: Alaska, American Samoa, Arizona, California, Colorado, Florida, Guam, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Northern Mariana Islands, Oklahoma, Oregon, Puerto Rico, South Dakota, Texas, Utah, Virgin Islands, Washington, Wyoming.  Different address for those filing through the Postal Service or using Courier Services.

For first time petitioners or applicants, forget the Nike motto “Just do it.”  Follow the revision of the motto by the USCIS “Just do it right the first time.”

About the Author

Crispin Aranda

Crispin Aranda

Crispin R. Aranda is an established International Visa Conselor and Immigrant Advocate. He is the president of IVC and is in several migration radio programs.

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